Inside Wisconsin Politics

Mail-in ballots, redistricting and a race in Wisconsin's 1st

Shawn Johnson:
The U.S. Supreme Court rules on mail-in ballots, the state Supreme Court hears arguments on gerrymandering, and national money is headed to the campaign for a southeast Wisconsin congressional district. This is Inside Wisconsin Politics. I’m Shawn Johnson, here with my colleagues Anya van Wagtendonk, Zac Schultz and Rich Kremer in Eau Claire. Hey, everyone.

Anya van Wagtendonk:

Hey.

Zac Schultz:
Hello.

Shawn Johnson:
So we have a lot to discuss today with action in multiple courts and lengthy arguments in that gerrymandering case. But Zac, we have to start out with some unusual news, to put it mildly. A plane crash involving Tom Tiffany, the Republican candidate for governor — or an emergency landing, I guess — he’s OK. What happened?

Zac Schultz:
Well, he’s been getting free plane rides to and from some campaign events, from an in-kind donor, a Langlade County Republican official. It was just the two of them in a plane. They had some mechanical issues and had to make an emergency water landing on Lake Wausau, and thankfully they were OK. The plane went down, they were able to swim away — only minor injuries. But this is the kind of thing that could have fundamentally changed this campaign, not just if this had gone much more tragically, but even the fact that Tom Tiffany can immediately get back out on the campaign trail means that he’s able to move forward. And it’s just one of those scary things that by November, probably won’t matter at all except as a story. But it really was a moment in this campaign where everyone said, wait, there’s larger things at stake here. This could have been a very tragic story.

Shawn Johnson:
Glad it did not end up being a big political story. So shifting to news that we were kind of watching here for a while now, Anya, the U.S. Supreme Court finally said something about this mail-in ballots appeal that was pending before it. We’ve talked about it a lot here on this show. What happened and what did the court say?

Anya van Wagtendonk:
Yeah. So the major takeaway that all voters should — if they hear nothing else that I say today — it’s that mail-in voting has not changed. So if you like to vote absentee, if you like to stick your ballot in the mail, you can continue doing that the way you’ve been doing it, although election officials do say try to get it in on the earlier side, if you’re not going to deliver it on purpose, in person, rather. But what the court essentially said is that it was not actionable this close to Election Day. So again, these are kind of changes that President Donald Trump had wanted to make to mail-in voting that would essentially have given the Postal Service kind of authority over a list of who can and can’t vote by mail. And so some justices, some conservative justices, did say that might be within the bounds of the law — that kind of data-gathering aspect of it — but the kind of practicalities of trying to put it in place while mail-in voting is already happening just would be impossible. So again, no major changes, no changes to how absentee voting works in Wisconsin. But I think it caused a lot of confusion going into, you know, just clerks trying to get those envelopes out the door.

Shawn Johnson:
So is that it in terms of federal involvement in Wisconsin elections, or is there other stuff happening?

Anya van Wagtendonk:
Yes. There’s always other stuff happening with elections, especially in a swing state like Wisconsin that is so consequential to anybody who’s running for state or national office. And so kind of the big things that we’re looking at — as I mentioned, the Postal Service thing had to do with data, and there are many other attempts by this White House to gather data about voters. It’s all kind of wrapped up in this idea of noncitizen voting, which they say is a huge problem. Study after study shows is not a problem, and in the vanishingly rare instances where it does happen, it is caught and prosecuted. But it’s kind of a way of tying up President Trump’s interest in election integrity and his interest in immigration enforcement. It kind of wraps both of those up, and so some of those attempts and related lawsuits are ongoing. Our elections commissioner, Megan Wolfe, got a letter along with, I think, 29 or 30 other election chiefs around the country saying: Keep your records related to 2024, you are under investigation, there will be litigation. So that’s ongoing. DHS is reportedly investigating Wisconsin elections. So whether there will be sort of investigative arms on the ground on Election Day — so potentially lots more federal involvement in our elections.

Shawn Johnson:
Potentially lots. But I like the message you had at the beginning, though, as far as voters are concerned.

Anya van Wagtendonk:
You can send in your absentee ballots or drop them in person and on purpose as you normally would.

Shawn Johnson:
Everything is the way that you knew it to be. OK, let’s turn now to these gerrymandering cases before the state Supreme Court. You know, this is something we’ve kind of touched on, off and on, where there’d be an order here and there, but it felt like the state Supreme Court did not want to get involved in these two challenges. I don’t know how involved they are, but Rich, they held a lot of arguments in these two cases this week. What are the cases and give us a sample of essentially what’s at stake.

Rich Kremer:
Well, what’s at stake is the congressional districts that Wisconsin has. There are eight of them. And we’re not talking about this year, November’s election, we’re talking about 2028 at this point. One of the parties, one of the plaintiffs that brought it, was hoping to get new maps before this November election, but that’s not going to happen. Now there’s even talk about whether or not it can happen before the 2028 presidential election. But here, in a nutshell — even in a nutshell, these things are complex — two lawsuits from liberal firms. One is national Democratic firm Elias Law Group. They’ve brought a partisan gerrymandering claim, essentially saying that the 6-2 Republican majority among Wisconsin’s congressional delegation was designed by Republicans in 2011. And the other suit is a little bit different. It’s got a new claim that hasn’t really been tried in Wisconsin. That one comes from liberal group Law Forward that is representing a group of businesses, business owners, and that suit claims it’s an anticompetitive gerrymander that has resulted in the congressional map we have right now. Now, what that means is that the map was created, according to their argument, strictly to keep incumbents in power. That’s regardless of partisanship. So the reason it’s in front of the Supreme Court is these lawsuits took a long route that has also not been tested. They used a 2011 law that was passed by Republican legislators. Basically, it sets up a bit of a streamlined process for trying redistricting cases. They can petition the Supreme Court to create these three-judge panels — that happened this year in both of those lawsuits. And both of those panels dismissed the cases saying that they don’t have the authority to overturn the maps, because the maps were put in place by the Supreme Court back in 2022. And then another aspect of this that I’m sure we’ll get into has to do with something called least changes, essentially, that the Supreme Court’s former conservative majority in 2022 — 2021 or 2022 — required the current map be as similar as possible to the 2011 map passed by the Legislature. So that’s in a nutshell. The Supreme Court heard eight hours of arguments about the merits of the cases, but also really about this question of whether or not these three-judge panels have the authority to act. So what the plaintiffs in the suit want is for the cases to be remanded back to the judicial panels. Republicans in the lawsuit say that can’t happen, it’s just not allowed under Wisconsin’s constitution.

Shawn Johnson:
Zac, that’s a lot. I feel like Rich accurately summed up the cases there, between the judicial panels, least changes, partisan gerrymandering, anticompetitive gerrymandering. I can imagine somebody hearing that and thinking like: Boy, what am I supposed to take away from all that? It feels like it is a lot. Why does it matter? Why is this a big deal?

Zac Schultz:
Well, it matters because we’ve had a 6-2 Republican majority baked in, in terms of our maps for going on two decades. If these maps hold out through 2030, barring a wave election year — and obviously we’re watching Wisconsin’s 3rd to see if Democrats can get over the hump there, that’s the closest to any swing district in Wisconsin — the rest of them are pretty solidified outside of a wave year when any incumbent anywhere can go down. And I think the reason that people are paying attention to this is this is the one set of maps that has not fallen under this new liberal Supreme Court. So part of this is the history lesson of why courts matter, which is something that I like to preach quite a bit. Democrats were locked out of the Legislature and legislative control since 2011, when Republicans came under Scott Walker, gerrymandered the maps, and created basically a permanent Republican majority and then turned around and said: Well, if you really want to change how the maps are drawn, you should have the Legislature do that, but we’re not going to do that. Basically, making sure that there was a route that could never be taken to actually having competitive non-gerrymandered maps in Wisconsin. The Supreme Court came in, finally got its liberal majority when Janet Protasiewicz won on her “these maps are rigged” campaign in 2023, at that time, the most expensive race in U.S. history for a Supreme Court position. And they overturned the legislative maps. But they did that under a non-contiguity, meaning the maps weren’t all whole and composed, because that was actually in state law. This idea of an anticompetitive gerrymander or a partisan gerrymander does not have a place in Wisconsin’s constitution or in state law. So they’ve repeatedly declined to take the congressional cases because they don’t have anything in the constitution or state law that can do that. And now with a 5-2 majority, they’re finally hearing these cases with these panels, and they’re having to decide: OK, what do we hang this on in terms of state law that gives us the authority — or gives anyone the authority — to declare that these maps are unconstitutional? And they’re almost having to invent a clause that doesn’t exist because the Legislature hasn’t created it, and there is no process for the citizens to create a constitutional amendment as there are in other states where there have been reforms for gerrymandering. It’s clear listening to oral arguments that the liberals believe these are anticompetitive or partisan gerrymanders. But what they don’t know is what is the process to actually legally decide that and have a court do something about it in Wisconsin. And that’s the question that really remains to be seen, is whether they will find a way, either under equal opportunity or the right to vote and vote dilution, or things that really aren’t written in there. And that is where this partisan argument comes in, with Republicans saying there’s nothing there for you to hang this case on, which is why it has sat untouched for all these years.

Shawn Johnson:
Anya, you have covered these justices before. You did not sit through all eight arguments of these hearings, but you know what they have said as candidates, some of the new ones: Janet Protasiewicz, Susan Crawford, Chris Taylor elected this year. And on the campaign trail and in their past lives as attorneys, some of them, they’ve kind of weighed in on this gerrymandering stuff. Where are they broadly, now that they have a 5-2 majority on the court?

Anya van Wagtendonk:

Yeah, well, first of all, shout out to Rich, who did sit through…

Shawn Johnson:

He sure did.

Anya van Wagtendonk:

…all eight hours of those hearings. But yeah, I mean, as Zac mentioned, this is an issue that comes up sort of when they are campaigning, because it is a way of kind of signaling for other things, right, when you talk about gerrymandering, that has an inherently kind of partisan or political bent to it. And so obviously what they say is that they don’t prejudge cases in advance, but some of them have been involved. Janet Protasiewicz, for example, talked about the maps being rigged when she ran, involved in lawsuits related to these types of questions before. One of the things that I think is also important to kind of note is that regardless of those stances, previous work that they’ve done on the issues — the recusal rules for justices is essentially like, does the justice want to recuse or not — so even if this has been a question with Janet Protasiewicz — for example, the words “the maps are rigged” — did that mean she couldn’t be involved in hearing that case? She determined, no, it does not mean that. And so she didn’t recuse. And so these justices will continue to hear the cases around this, regardless of their history. Rich, Zac alluded to this a little bit, and you did in your reporting — a general openness on the court during these arguments from some of these justices to potentially striking these maps down, without the details of how they do it. What kind of things were you hearing from the justices?

Rich Kremer:
I heard the liberal justices say outright that these maps are gerrymandered, essentially. And they were really focusing on the least changes doctrine from the court’s former conservative majority that was essentially — I don’t know the right term — but in the ruling on the state legislative maps from the liberal majority, they said: Least change, we’re not going to follow that anymore, it doesn’t make sense, it’s not neutral to allow something that is a gerrymander to stand by essentially leaving it mostly unchanged. So because the congressional map is least change, it seems like that might be an avenue for the Supreme Court to hang the potential decision striking down the maps on. Of course, I don’t know how it will play out, but that’s one thing that I’m definitely watching. The justices also said, the liberal justices said least change isn’t a thing. The attorney from this group, excuse me, Elias Law Group, called it legal quicksand, which is just a fun phrase. So we’re going to have to wait and see what the Supreme Court does in terms of remand. I mean, there’s a potential that they could do more than that. But they were also talking about whether or not these cases should be consolidated or could be consolidated — they bring different cases. There was some discussion about, boy, that would cause a lot of scheduling problems, et cetera. So a lot left to come out on this.

Zac Schultz:
Shawn, I think it’s worth mentioning for people who wonder whether this will happen, is there is still a good chance the Supreme Court could completely punt on this yet again. And the scenario is, if the Democrats take over the Legislature and elect David Crowley this fall, they will write their own congressional districts next January — 100% guaranteed — because they have the right, because the Legislature never passed maps for this decade. The court picked a map. If that happens, there’s a chance the Supreme Court is waiting to see what happens in November, and then they can say: It’s not our problem anymore, the Legislature has fixed the problem, we don’t have to worry about this and issue rulings. And then a new Legislature will be in place that can set up all sorts of mapmaking processes for the future.

Shawn Johnson:
Yeah, I mean, I think it’s fair to say that this case is not on a fast track. 

Zac Schultz:

No.

Shawn Johnson:

This is not something where like other states, you’ve seen them racing toward doing something for 2026. Nobody’s talking about that anymore. They’re saying 2028. So they have plenty of off-ramps if the court does not really want to get involved in this stuff. But I think it’s like you said, Zac, it could depend largely on who wins next year. But the way that this process is playing out with these circuit court panels, you could imagine that taking a little while. I’ll tell you one district that was redrawn a little bit in the last round of redistricting: the !st Congressional District. This was through that least change process. The court said: Submit us these least change maps. Gov. Tony Evers said: Here’s mine for the 1st Congressional District, it makes it a little bit more competitive. And now we have, Rich, national money flowing to that race between Mitchell Berman, a Democrat, and Republican Bryan Steil. What is this “Red to Blue” program, and does it matter?

Rich Kremer:
I’d say it matters. How much it’ll matter, we’re not sure yet, but the Democratic Congressional Campaign Committee, which is the House Democrats’ campaign wing, they added Berman to their “Red to Blue” program, which essentially means the national Democrats are going to be sending some additional support — maybe some staff, additional fundraising capacity, training, that sort of thing. So essentially they’re treating this race as a bit more of a toss-up than they were before, the national Democrats. He needs a lot of fundraising help, because in terms of — I looked up the latest — for the entire year — fundraising numbers. Berman had raised $700,000 or so, and Bryan Steil had raised almost $5.5 million, something like that. He’s a prolific fundraiser. So national Democrats need to do a lot to be able to keep up.

Shawn Johnson:
So this really is one of those races it seems like, where if it’s a normal year, Bryan Steil might be OK. He has a record of doing pretty well. He had a “Red to Blue” candidate in 2024 and had no problem winning that year. But if it’s a wave election, this would be the kind of district I think that we all have to watch for in November. That’s all the time we have for today. This has been Inside Wisconsin Politics. Be sure to follow us on pbswisconsin.org, wpr.org, YouTube or wherever you get your podcasts.